WND EXCLUSIVE

Obama gets detention authority back – for now

Appeals court panel to review constitutional issue again

Published: 09/18/2012 at 9:03 PM

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An appeals court judge has issued an order temporarily restoring to Barack Obama – whose administration previously has described individuals who hold a pro-life position or advocate for the Second Amendment or limited government as possible terrorists – authority to detain indefinitely those suspected of aiding or supporting America’s enemies.

The order late last night from Raymond Lohier of the 2nd U.S. Circuit Court of Appeals stayed a permanent injunction issued by the trial court in the case and instructed that the issue be addressed by the court’s motions panel Sept. 28.

The move restores for now the authority for Obama under the National Defense Authorization Act to detain indefinitely those he would designate as having supported materially opponents of the U.S.

The lower court judge, U.S. District Judge Katherine Forrest, had ordered the authority, Section 1021 of the NDAA, blocked because, as she noted in her order, “The government put forth the qualified position that plaintiffs’ particular activities, as described at the hearing, if described accurately, if they were independent, and without more, would not subject plaintiffs to military detention under Section 1021.”

But she continued, “The government did not – and does not – generally agree or anywhere argue that activities protected by the First Amendment could not subject an individual to indefinite military detention under Section 1021.”

“The main section of concern, Section 1021 of the NDAA Conference Report, does to the 5th Amendment what the PATRIOT Act does to the 4th. The 5th Amendment is about much more than the right to remain silent in the face of government questioning. It contains very basic and very critical stipulations about due process of law. The government cannot imprison a person for no reason and with no evidence presented or access to legal counsel,” he wrote.

But, he said, the NDAA calls for indefinite detention of “anyone accused of ‘substantially supporting’ such groups or ‘associated forces.’ How closely associated? And what constitutes ‘substantial’ support? What if it was discovered that someone who committed a terrorist act was once involved with a charity? Or supported a political candidate? Are all donors of that charity or supporters of that candidate now suspect, and subject to indefinite detainment? Is that charity now an associated force?

“The Bill of Rights has no exemptions for ‘really bad people’ or terrorists or even non-citizens,” he continued. “It is a key check on government power against any person.”

He said the NDAA abridges that “on the theory that rights are suspended in a time of war, and the entire United Sates is a battlefield in the War on Terror. This is a very dangerous development indeed.”

The federal government’s plea to the 2nd Circuit Court said it was an emergency that needed to be resolved right away.

The government said the journalists and others who brought the challenge weren’t in danger of being arrested because of what they did, and those who would be targeted for detention should be in the bull’s-eye because of what they are doing in the war.

They argued that a president must have the ability “to conduct military operations” and that without that, there are those “in areas of active hostilities” who could be impacted.

Obama’s attorneys also argued that acts of Congress are presumed to be constitutional. And they note the NDAA says it does not “affect existing law or authorities relating to the detention of United States citizens.”

Further, Obama made the statement when the plan became law he would not “authorize the indefinite military detention without trial of American citizens.”

But Lucy Steigerwalk, an associate editor at Reason, said while there were detentions during World War II, that eventually ended. “This one [war on terror] is against a tactic, a belief, and people spread allover the world. It need never end, and it may never end, when you have real religious extremists” combined with the government’s actions.

Gary Kreep of the United States Justice Foundation has worked on amicus briefs in the case, and told WND the arguments in the briefing to the Second Circuit “are consistent with the Obama administration’s intent to restrict our constitutional rights in any way…”

In her order, Forrest ordered against enforcement of Section 1021, in the case brought last January by a number of writers and reporters, led by New York Times reporter Christopher Hedges. The journalists contend the controversial section allows for detention of citizens and residents taken into custody in the U.S. on “suspicion of providing substantial support” to anyone engaged in hostilities against the U.S.

The lawsuit alleges the law is vague and could be read to authorize the arrest and detention of people whose speech or associations are protected by the First Amendment. They wonder whether interviewing a member of al-Qaida would be considered “substantial support.”

“Here, the stakes get no higher: indefinite military detention – potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity – and that specificity is absent from Section 1021,” Forrest had said.

Virginia already has passed a law that states it would not cooperate with such detentions, and several local jurisdictions have done the same. Arizona, Rhode Island, Maryland, Oklahoma, Tennessee and Washington also have considered similar legislation.

Constitutional expert Herb Titus filed a friend-of-the-court brief on behalf of the sponsor of the Virginia law, Delegate Bob Marshall and others.

Titus, an attorney with William J. Olson, P.C., told WND the judge’s first decision to grant a preliminary injunction halting enforcement of paragraph 1021 “affirms the constitutional position taken by Delegate Marshall is correct.”

The impact is that “the statute does not have sufficient constitutional guidelines to govern the discretion of the president in making a decision whether to hold someone in indefinite military detention,” Titus said.

The brief was filed on behalf of Marshall and other individuals and organizations, including the United States Justice Foundation, Downsize DC Foundation, Institute on the Constitution, Gun Owners of America, Western Center for Journalism, the Tenth Amendment Center and Pastor Chuck Baldwin.

Marshall’s HB1160 passed the Virginia House of Delegates by a vote of 87-7 and the Virginia Senate 36-1. Since the vote was on changes recommended by Gov. Bob McDonnell, it was scheduled to take effect without further vote.

Marshall then wrote leaders in state legislatures around the country suggesting similar votes in their states.

Marshall’s letter noted Virginia was the first state in the nation to refuse cooperation “with federal authorities who, acting under the authority of section 1021 of the National Defense Authorization Act of 2012 (NDAA), could arrest and detain American citizens suspected of aiding terrorists without probable cause, without the right to know the charges against them, and without the procedural rights guaranteed by the Bill of Rights.”

Endorsing Marshall’s plan was the Japanese American Citizens League, which cited the detention of tens of thousands of Japanese Americans during World War II on no authorization other than the president’s signature.